MOHINDER KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The instant petition under Sec. 482 Cr.P.C has been filed on behalf of the petitioner-accused (hereinafter referred to as the accused) for quashing and setting aside the order dated 8.6.2018, passed by learned Special Judge, Chamba in Cr. MP No.522/2018, titled as State of H.P. versus Mohinder Kumar and others in (Sessions Trial No. 36/2017), whereby the application having been filed by the prosecution under Sec. 39 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the Act in short), has been allowed and Smt. Sneh Sharma, Counsellor in the Office of District Child Protection Unit, Chamba, has been summoned for rendering assistance while recording the statement of victim No.6, who is, admittedly, suffering from Moderate Mental Retardation (ICD-10F71), mental age (6-9 years), with disability of 72% and is unable to depose.

(2.) The facts, as emerge from the record are that an application under Sec. 39 of the Act, came to be filed on behalf the respondentprosecution (hereinafter referred to as the prosecution), seeking therein permission to take assistance of an expert while recording the statement of victim No.6. The prosecution averred in the application that pursuant to order dated 11.04.2018, passed by this Court, victim No.6, was subjected for the psychological evaluation by the Medical Board constituted by the RPGMC, Tanda, who has categorically opined that victim No.6 is suffering from Moderate Mental Retardation (ICD-10F71), mental age (6-9 years), with disability of 72%, severe type and permanent in nature. The prosecution also averred that keeping in view the mental condition of victim No.6, there is a requirement to take assistance of an expert as far as examination of the witnesses at the pre-trial as well as trial stage is concerned. The prosecution further averred that victim No.6 cannot be examined without assistance of an expert/Counsellor and as such, the person, namely, Smt. Sneh Sharma, who is enrolled as Counsellor in the Office of District Child Protection Officer, Chamba, may be summoned/called while recording the statement of victim No.6.

(3.) The aforesaid application filed by the prosecution came to be resisted on behalf the petitioner-accused as well as other co-accused on the ground that assistance of Counsellor cannot be taken at the time of recording of statement of mentally challenged child, under Sec. 39 of the (Protection of Children from Sexual Offences Act) 2012. The petitioner-accused also claimed before the Court below that the person proposed to be appointed as a Counsellor does not fall within the ambit of an expert, interpretor, special educator or translator as defined under Sec. 2 (c) (d) and (e) of the Protection of Children from Sexual Offences Rules, 2012. Apart from above, the accused also stated by way of reply that since FIR at hand came to be registered at the behest of District Child Protection Officer, Chamba and the proposed Counsellor had also played an active role in registration of the FIR, she cannot be termed to be a fit person to be appointed as an expert while recording the statement of victim No.6.